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Washington Mutual Bank, FA v. Shlafer

2005 WL 2385947 (N.J. Super. Ch. Div. 2005) (Unpublished)

MORTGAGES; FORECLOSURE; NOTICE— Under the New Jersey Fair Foreclosure Act, a foreclosure notice must be served upon the mortgagor at least thirty days before the commencement of a foreclosure action, but there is no time limit by which the mortgagee is required to file the action after notice has been served.

A husband and wife executed a note and mortgage in favor of a bank. The couple stopped making payments on the note and the bank sent the couple a notice of its intent to accelerate payments on the note and to foreclose. For the next several months, the parties negotiated the pay off of the note. The bank proposed a forbearance plan to the couple which provided that the loan would not be reinstated if the couple followed the plan. The couple then requested an explanation as to why the loan would not be reinstated if the plan was followed. The bank responded by withdrawing the proposed forbearance plan. It then filed a foreclosure complaint. The couple filed an answer to the complaint in which they admitted to defaulting on the note payments. The bank then moved for summary judgment, seeking to strike the couple’s answer, enter default, and transfer the case to the foreclosure unit. The couple filed a motion to dismiss the complaint, asserting that the bank failed to comply with the notice requirements of the New Jersey Fair Foreclosure Act.

The lower court granted summary judgment in favor of the bank and denied the couple’s motion to dismiss the complaint. It found that there was no dispute as to whether the couple defaulted on their loan payments because the couple admitted to failing to make the payments for over a year in their answer. It further found that there was no dispute as to whether the bank had provided notice to the couple of its intent to foreclose under the Act because evidence was presented indicating that written notice had been provided. The Court rejected the couple’s assertion that the bank’s foreclosure notice was stale under the Act because it had been sent ten months before the bank moved to foreclose. The Court found that the Act only provided that a foreclosure notice be served upon the mortgagor at least thirty days prior to the commencement of the foreclosure action. It, however, does not specify a time period beyond which the notice would become ineffective if a foreclosure action had not been commenced. For these reasons, the Court ruled that there were no material facts in dispute and granted summary judgment in favor of the bank.


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